AS TO THE ADMISSIBILITY OF
Application No. 29477/95
by Herbert EISENSTECKEN
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 10 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 September 1995
by Herbert EISENSTECKEN against Austria and registered on
6 December 1995 under file No. 29477/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The applicant, born in 1961, is an Italian national, residing in
Vahrn, Italy. Before the Commission he is represented by Mr. J. Posch
and Mrs. E. Posch, both lawyers practising in Innsbruck.
The facts as submitted by the applicant may be summarised as
follows.
A. Particular circumstances of the case
On 7 March 1985 the applicant concluded with E. a contract for
property to vest in a third person on the owner's death
(Übergabevertrag auf den Todesfall) under which the applicant should
receive the farming estate of E. situated in Mils after the latter's
death.
On 15 December 1992, after the death of E., the applicant filed
a request with the local Real Property Transactions Authority for Mils
(Grundverkehrsbehörde Mils) at the office of the Innsbruck District
Administration (Bezirkshauptmannschaft) for the approval of the above
contract and submitted that he intended to exploit the land himself.
On 28 April 1993 the applicant informed the Real Property
Transactions Authority that meanwhile, on 26 April 1993, he had
concluded a sales contract concerning E.'s farming estate with the
municipality of Mils. He requested the Real Property Transactions
Authority to approve the contract with E., taking into account that he
had meanwhile concluded a sales contract with the municipality of Mils.
On 23 July 1993 the Real Property Transactions Authority approved
the contract concluded with E. under the conditions that the land be
immediately transferred to the municipality of Mils and that the
municipality of Mils be registered as its owner in the land register
(Grundbuch) while a registration of the applicant as the owner in the
land register should not take place.
Meanwhile, on 25 May 1993, the Real Property Transactions
Authority had also approved the sales contract of 26 April 1993.
On 2 August 1993 the Real Estate Transactions Officer
(Landesgrundverkehrsreferent) at the Office of the Regional Government
for the Tyrol (Amt der Landesregierung) exercised his right of appeal
to the Regional Real Property Transactions Authority (Landesgrund-
verkehrsbehörde). He submitted that the contract with E. was in breach
of the Tyrolean Real Property Transactions Act (Grundverkehrsgesetz)
as neither the provisions on the transfer of agricultural and forestry
land nor the provisions on the transfer of real property to foreigners
were met. Section 4 of the Real Property Transactions Act required the
safeguard of the public interest in maintaining and strengthening an
economically viable agriculture and forestry. Under Section 6 of the
Act the approval of an acquisition of land must be refused if a person
acquired agricultural or forestry land without guaranteeing that he
would exploit the land himself. For this reason the approval had to
be denied. In any event, approval had to be refused on the ground that
the matter was res iudicata, since the applicant had already on two
previous occasions in 1982 and 1984 submitted contracts for transfer
of property concerning the same farming estate and each time approval
of the transfer had been refused by the Real Property Transactions
Authorities.
On 10 August 1993 also the administrator of the deceased's estate
appealed.
On 1 September 1993 the applicant commented on the appeals. He
contested that the matter was res iudicata. In his opinion also the
fact that he would not exploit the land himself was irrelevant as he
had already concluded a sales contract with the municipality of Mils.
On 28 September 1993 the Regional Real Property Transactions
Authority established a report on an inspection of the land in
question.
On 14 October 1993 the applicant approved this report and
requested an oral hearing. On 2 December 1993 the Regional Real
Property Transactions Authority held an oral hearing.
On 7 July 1993 a new Tyrolean Real Property Transactions Act was
adopted, which entered into force on 1 January 1994. By this Act the
name and composition of the Regional Real Property Transactions
Authority was changed.
On 28 February 1994 the new Real Property Transactions Commission
(Landes-Grundverkehrskommission) granted the appeal of the Real Estate
Transactions Officer and refused to approve the contract with E.
Refuting the argument that the matter was res iudicata, the Real
Property Transactions Commission found that the approval had to be
refused on the ground that the applicant did not intend to exploit the
land himself. The sales contract concluded with the municipality of
Mils was irrelevant, because the applicant's failure to fulfil the
requirements for an approval of the transfer of the land could not be
remedied by a subsequent transfer of the land. As regards the appeal
of the administrator of the deceased's estate the Real Property
Transactions Commission found that he lacked legal standing.
On 13 April 1994 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof).
He complained that the Regional Real Property Transactions
Commission had infringed his right to inviolability of property and his
right to acquire real property because it had applied the law in a
misconceived (denkunmöglich) manner by requiring that he exploited the
land himself, although this question had been irrelevant since he had
already concluded a sales contract with the municipality of Mils.
The applicant further raised the following complaints about the
Regional Real Property Transactions Commission and the appeal
proceedings:
- the Real Property Transactions Commission had not been competent
to decide his case as, according to the transitional provisions in
Section 40 of the Real Property Transactions Act 1993, the Real
Property Transactions Act 1983 was still applicable and the Regional
Real Property Authority should therefore have decided his case;
- the Real Property Transactions Commission had not been properly
composed since at its session of 24 February 1994 three of its members
had been replaced by substitute members, although they had not
officially informed the chairman of any reason for their absence;
- although the law required that the chairman of the Real Property
Transactions Commission should be someone with experience in real
property transaction matters the applicant was not aware that the
person appointed as chairman had any such experience;
- several members of the Real Property Transactions Commission and
the Real Property Transactions Authority, namely the senior civil
servant from the Agricultural Services Department (technischer
Agrardienst), the senior civil servant from the Forestry Services
Department (forsttechnischer Dienst), the legal expert and in the case
of the Real Property Transactions Commission also the chairman, were
members of the same division (B III) of the Office of the Regional
Government. Also the Real Property Transactions Officer was part of
this division. Although the Real Property Transactions Officer was not
a superior of the above civil servants indirect influence via their
common superior could not be ruled out;
- the setting up of the Regional Real Property Transactions
Commission had never been made public and therefore had not been valid;
- the Real Property Transactions Commission had held its session
and had decided on 28 February 1994, although its rules of procedure
(Geschäftsordnung) adopted by the Regional Government on
8 February 1994 had only been published in the Regional Official
Gazette on 8 March 1994;
- the Regional Real Property Transactions Authority had held a
hearing on 2 December 1993 at which the parties were present. However,
on 24 February 1994 the Regional Real Property Commission had held a
further hearing without informing the applicant thereof. Thus, two
different bodies had held a hearing and taken a decision in his case
and he had not been offered the possibility to present his arguments
in the course of the second hearing.
On 27 February 1995 the Constitutional Court dismissed the
applicant's complaint.
As regards the competence of the Real Property Transactions
Commission and the applicant's complaint about a decision-taking by two
authorities, the Constitutional Court found that the Real Property
Transactions Authority had not taken any decision. The Real Property
Transactions Commission which had taken the contested decision, had,
according to the transitional provision of Section 40 of the Real
Property Transactions Act 1993, been competent to do so. This
Commission had not decided on the basis of the oral hearing of
2 December 1993, but on the basis of the contents of the file.
Referring to its own case-law the Court found that an oral hearing was
in the present case not obligatory.
As regards the composition of the Real Property Transactions
Commission the Constitutional Court found that all the members had been
properly summoned to its session of 24 February 1994. The fact that
the chairman had in his previous positions never dealt with real
property transaction matters did not show that he was not "a person
experienced with real property transaction matters" as provided for by
the law. Neither the Federal Constitution nor any ordinary law
required the publication of the appointment of the members of a
collective authority (Kollegialbehörde). There were no members in the
Real Property Transactions Commission who were in their ordinary
administrative functions hierarchically subordinated to one of the
parties to the proceedings. Moreover, the Real Property Transactions
Act and the General Administrative Procedure Act (Allgemeines
Verwaltungsverfahrensgesetz) regulated the proceedings before the Real
Property Transactions Commission in a sufficiently precise manner. It
followed that the composition of the Real Property Transactions
Commission did not give rise to any constitutional concerns.
As regards the complaint that the Real Property Transactions
Commission applied the law in a misconceived manner the Constitutional
Court found that the subject-matter of the proceedings at issue had
been the approval of the transfer of rights to the applicant, and not
any subsequent contracts. Even the applicant himself had not alleged
that the authorities had assessed in a misconceived manner that he did
not exploit the land himself. Insofar the applicant had relied on a
right to freedom of acquisition of real property the Constitutional
Court found that this right was only granted to Austrian citizens.
B. Relevant domestic law
1. Under the Tyrolean Real Property Transactions Act of 1983
(Grundverkehrsgesetz), a contract concerning the transfer of ownership
over real property was subject to approval by the real property
transaction authorities if agricultural and forestry land was concerned
or if the purchaser did not possess Austrian nationality (Sections 1
and 3). Such a contract could only take effect if it was approved by
the real property transaction authorities (Sections 3 and 16). The
purchaser of land was obliged to seek approval within two months of the
approval of the contract (Section 15 para. 1). No entry could be made
in the land register (and thus property definitely acquired) until the
transaction had been approved by the competent authority (Section 2
para. 3). If approval was withheld, the acquisition was null and void
(Section 16 para. 1).
On 1 January 1994 a new Real Property Transactions Act (of 1993)
entered into force. It regulates the matter in more detail but
essentially maintains the above principles.
The transitional provision of Section 40 of the 1993 Act provides
that pending proceedings have to be terminated in accordance with the
provisions of the 1983 Act (para. 3) and that the 1983 Act remains
applicable to contracts concluded before the entry into force of the
1993 Act (para. 4). The Regional Government shall appoint the members
of the Real Property Transactions Commission in time so that they can
take up their duties when the 1993 Act enters into force (para. 2).
According to the 1983 Act the second and final instance was the
Regional Real Property Authority (Landesgrundverkehrsbehörde). In the
1993 Act the Regional Real Property Authority is replaced by the
Regional Real Property Commission (Landes-Grundverkehrskommission).
The membership in both bodies varies according to the subject-matter
of the contract to be examined. In the case of agricultural or
forestry land - whether the buyer be Austrian or foreign - the nine
members of the Regional Real Property Commission are (Section 28):
a) a person experienced in real property transaction matters as
chairman
b) a member of the judiciary (Richterstand)
c) a legally qualified civil servant from the Office of the
Regional Government as rapporteur
d) a lawyer or public notary (Rechtsanwalt oder Notar)
e) a member of the Chamber of Workers and Employees (Kammer für
Arbeiter und Angestellte), a member of the Chamber of Commerce
(Kammer der Gewerblichen Wirtschaft), a member of the Chamber of
Agriculture (Landwirtschaftskammer)
f) a senior civil servant from the Agricultural Services
Department (technischer Agrardienst)
g) a senior civil servant from the Forestry Services Department
(forsttechnischer Dienst)
The Regional Real Property Transactions Authority, when dealing
with matters of agricultural and forestry land, was composed in the
same manner (Section 13 para. 4 of the 1983 Act as amended in 1991).
2. The procedure before the real property transaction authorities
is governed by the General Administrative Procedure Act 1950
(Allgemeines Verwaltungsverfahrensgesetz).
Section 40 para. 1 of the General Administrative Procedure Act
deals with oral hearings and provides as follows:
[Translation]
"(1) Oral hearings shall be held in the presence of all known
parties and the necessary witnesses and experts. If oral
hearings have to be combined with an inspection of the location,
they should, if possible, be held there or otherwise at the seat
of the authority or another location which in the circumstances
appears most suitable.
[German]
"(1) Mündliche Verhandlungen sind unter Zuziehung aller bekannten
Beteiligten sowie der erforderlichen Zeugen und Sachverständigen
vorzunehmen und, sofern sie mit einem Augenschein verbunden sind,
womöglich an Ort und Stelle, sonst am Sitz der Behörde oder an
dem Ort abzuhalten, der nach der Sachlage am zweckmäßigsten
erscheint.
COMPLAINTS
1. The applicant complains under Article 1 of Protocol No. 1 that
the Regional Real Property Transactions Commission's refusal to approve
the contract for a transfer of property violates his property rights
because the Authority had applied the law in a misconceived manner.
2. He further complains that the Real Property Transactions
Commission could not be considered a "tribunal established by law"
within the meaning of Article 6 para. 1 of the Convention and had not
been competent to decide his case. He submits in particular that:
- according to the transitional provisions of the 1993 Real
Property Transactions Act it should have been the former Real Estate
Transactions Authority and not the newly created Real Property
Transactions Commission which should have decided his case;
- at its session of 24 February 1994 the Real Property Transactions
Commission had not been properly composed because three of its members
had been represented by substitute members and the absent members had
not properly informed the chairman of any reasons for their absence;
- the rules of procedure of the Real Property Transactions
Commission, adopted by the Regional Government of the Tyrol on
8 February 1994, had only been published after the decision had been
taken in his case;
- the appointment of the members of the Real Property Transactions
Commission had not been published;
- the chairman of the Real Property Transactions Commission is not
a person experienced in real property transactions matters.
3. The applicant also complains that the Regional Real Property
Transactions Commission did not satisfy the requirement of impartiality
under Article 6 para. 1 of the Convention because four of its members
were civil servants belonging to the same division as the Real Property
Transactions Officer. Although the Real Property Transactions Officer
was not a superior of the above civil servants, indirect influence via
their common superior could not be ruled out.
4. The applicant complains under Article 6 para. 1 of the Convention
about the lack of an oral and public hearing before the Regional Real
Property Transactions Commission.
THE LAW
1. The applicant complains about the fact that he could not acquire
the farming estate at issue and relies on Article 1 of Protocol No. 1,
(P1-1) which provides as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission observes that under the relevant domestic law a
contract for transfer of ownership of real property can only take
effect and entered into the land register if it has been approved by
the competent real property transactions authority. The transfer of
title does not occur before the entry into the land register. The
applicant thus complains that he could not acquire property over the
land at issue. However, Article 1 of Protocol No. 1 (P1-1) does not
guarantee a right to acquire possessions (No. 11628/85, Dec. 9.5.86,
D.R. 47, p. 270; Union of Atheists v. France, Comm. Report 6.7.94,
para. 55; No. 21956/93, Dec. 22.2.95, unpublished; No. 23962/94,
Dec. 12.4.96, unpublished).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains that the Real Property
Transactions Commission could not be considered a "tribunal established
by law" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention and had not been competent to decide his case.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The Commission finds that the proceedings at issue involved a
determination of the applicant's civil rights or obligations within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see Eur.
Court HR, Sramek v. Austria judgment of 22 October 1984, Series A no.
84, p. 17, para. 34). Article 6 para. 1 (Art. 6-1) therefore applies.
The Commission recalls that it is the purpose of Article 6
para. 1 (Art. 6-1) requiring that tribunals shall be "established by
law" that the judicial organisation in a democratic society must not
depend on the discretion of the Executive, but that it should be
regulated by law emanating from Parliament. However, Article 6 para.
1 (Art. 6-1) does not require the legislature to regulate every detail
in this area by formal Act of Parliament if the legislature establishes
at least the organisational framework for the judicial organisation
(cf. Zand v. Austria, Comm. Report 12.10.78, para. 69, D.R. 15, p. 80).
Having regard to the findings of the Constitutional Court in its
decision of 27 February 1995, the Commission finds that the Real
Property Transactions Commission, and not another body which had
already ceased to exist, had been competent to examine the applicant's
case.
The Commission observes that the applicant further raises various
complaints concerning formalities of the appointment and composition
of the Commission which decided his case on 24 February 1994, which the
Constitutional Court, in its detailed decision, considered unfounded.
In the Constitutional Court's view this Commission had been correctly
composed, correctly summoned and had sufficiently precise procedural
rules for dealing with the applicant's case.
The Commission therefore finds that there is no appearance of a
violation of the applicant's rights under Article 6 para. 1
(Art. 6-1) of the Convention in this respect.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains that the Regional Real Property
Transactions Commission did not satisfy the requirement of impartiality
under Article 6 para. 1 (Art. 6-1) of the Convention because four of
its members were civil servants belonging to the same division as the
Real Property Transactions Officer. Although the Real Property
Transactions Officer was not a superior of the above civil servants,
indirect influence via their common superior could not be ruled out.
The Commission recalls that in the Sramek case the Court has
found that where a tribunal's members include a person who is in a
subordinate position, in terms of his duties and the organisation of
his service, vis-a-vis one of the parties, litigants may entertain a
legitimate doubt about that person's independence (Eur. Court HR,
Sramek v. Austria judgment of 22 October 1984, Series A no. 84, p. 20,
para. 42).
The Commission observes, however, that in the present case the
civil servants employed by the Office of the Regional Government were
not in a subordinate position vis-a-vis the Real Property Transactions
Officer. This is also accepted by the applicant. He argues, however,
that because all these persons belong to the staff of the same body,
the Office of the Regional Government, indirect influence on the civil
servants sitting in the Regional Real Transactions Commission could not
be ruled out. The Commission finds that this allegation, not
substantiated by any other element, is not in itself sufficient for
casting doubts on the independence of these civil servants (see
Eur. Court HR, Ettl v. Austria judgment of 23 April 1987, Series A
no. 117-A, p. 18, paras. 38-39).
The Commission therefore finds that there is no appearance of a
violation of the applicant's rights under Article 6 para. 1
(Art. 6-1) of the Convention in this respect either.
It follows that also this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the lack of an oral and public hearing before the
Regional Real Property Transactions Commission.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of this complaint and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of this complaint to the respondent
Government.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicant's
complaint about the lack of an oral and public hearing
before the Regional Real Property Transactions Commission;
and, unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy